There have been a collection of developments relevant to the issue of interim removal since I first wrote this article in 2007 including the decision of Ryder J in Re L (A Child)[2007] EWHC 3404 (Fam), the Nottinghamshire baby case, Baby P, the implementation of the PLO etc and I thought it would be useful to revisit the topic to see which of these developments, if any, has or should be making a difference to the attitude of the courts and local authorities in relation to interim removal of children from there parents.

The steady stream of cases in which the courts have considered the rights and wrongs of removing children from their parents on an interim basis has continued to contribute to the jurisprudence in this area. The age of the child(ren) concerned has not been a particular focus although quite often the child is a new-born and it is the birth of the child which brings about the urgent application to the court. There has been concern in the media about the removal of young babies from their parents with figures showing that the number of children taken from their families on the grounds of alleged abuse or neglect has more than doubled in the last 10 years, from 1,300 10 years ago to 2,800 last year. On the other hand, consistent with the thought that social workers are deemed unable to do right for doing wrong and are damned whether they do or do not, post the Baby P case, the Manchester children and the father who got his daughters pregnant 19 times, the media is equally outraged by the high profile cases in which it seems that children were not removed who should have been. One concern from the enquiry into the Baby P case is that legal advice was given at one point that there were insufficient grounds to issue care proceedings which seems to the author to underline my earlier thought that there may be a confusion in the advice given to social services arising from an insufficient distinction being made between grounds for care proceedings being brought and grounds for interim removal. I will return to this point later in the article.

Before going on to consider the general case law on interim removal, it is worth noting the perhaps rather obvious point which has emerged from the Nottingham case - R v Nottingham City Council[2008] EWHC 152 (Admin): if there is no PPO and no court order authorising removal and any parent does not consent to removal, the local authority is not entitled to remove a child from the care of a parent.

An examination of the general case law continues to demonstrate that interim removal should very rarely be ordered and that very great care indeed should be taken to ensure that there is proper pre-proceedings disclosure and scrupulously fair procedure adopted at hearings.

1. In Re O (Supervision Order) [2001] 1 FLR 923, Hale LJ (as she then was) emphasises that ‘the court should begin with a preference for the less interventionist rather than the more interventionist approach. This should be considered to be in the better interests of the children … unless there are cogent reasons to the contrary …’

2. In Re C & B (Care Order: Future Harm) [2001] 1 FLR 611, (in which the author had the privilege and good fortune to be led by the late and sorely missed Allan Levy QC), the feared harm to the subject child derived from the mother’s personality traits which in stressful situations, including conflict with the father, led to her becoming irrational, aggressive, emotionally demanding and incapable of putting the children’s needs before her own .. (para 15)). At the time of the interim hearing resulting in the child’s removal there was no evidence of physical harm; on the contrary, the evidence was that he was thriving. Hale LJ (as she then was) said (para 17): ‘I am bound to comment about that. On what basis could it possibly be appropriate to remove a 10 month-old baby from the only parents and home he had ever known, at a crucial stage in the development of his attachments, when there was no evidence that he was at immediate physical risk and, indeed, no evidence that he was at immediate emotional risk? All the evidence was that he was doing well. All the evidence was that there was no existing pointer to anything that might have been thought to indicate that he was not doing well at that time. Any evidence of a risk of harm was to his intellectual and emotional development at a considerably later stage…. I do not, of course, wish to suggest that there are no cases in which one should intervene now to prevent future harm, or that none of those may warrant immediate pre-emptive action before the case comes on for full hearing. But this was nowhere near a clear enough case of the former to warrant the latter. It was a classic example of a situation where the case for intervention should have been proved by a full hearing in court before the intervention took place, and not after.’

3. Hale LJ went on to say (para 28) that the court had to look at the nature of the feared harm – clearly removal might be justified where there was a comparatively small risk but of really serious harm. However, it was not so justified where the harm was not immediate and not of the gravest sort. The nature and gravity of the feared harm must be highly relevant to the action taken in response to it. ‘I also accept that there are cases in which the local authority is not bound to wait until the inevitable happens: it can intervene to protect long before that. But there has to be a balance. The cases where it is appropriate to do that are likely to involve long-standing problems which interfere with the capacity to provide even ‘good enough’ parenting in a serious way, such as serious mental illness, or a serious personality disorder, or intractable substance abuse or evidence of past chronic neglect or abuse, or evidence of serious ill-treatment and physical harm’ (para 30). The response or intervention must be proportionate to the feared harm.

4. In Re G (Care: Challenge to Local Authority’s Decision) [2003] 2 FLR 42, Munby J held: ‘The fact that a local authority has parental responsibility for children pursuant to s 33(3)(a) of the Children Act 1989 does not entitle it to take decisions about children without reference to, or over the heads of the children’s parents. A local authority, even if clothed with the authority of a care order, is not entitled to make significant changes in the care plan, or to change the arrangements under which the children are living, let alone to remove the children from home if they are living with their parents, without properly involving the parents in the decision-making process and without giving the parents a proper opportunity to make their case before a decision is made. After all, the fact that the local authority also has parental responsibility does not deprive the parents of their parental responsibility.’

5. In Re B (Care: Interference with Family Life) [2003] 2 FLR 813, Thorpe LJ held: ‘the judge may not make such an order without considering the European Convention for the Protection of Human Rights and must not sanction such an interference with family life unless he is satisfied that that is both necessary and proportionate and that no other less radical form of order would achieve the essential end of promoting the welfare of the children.’

6. In Haase v Germany [2004] 2 FLR 39, the European court held (para 95 ff): ‘ The fact that a child could be placed in a more beneficial environment for his or her upbringing will not on its own justify a compulsory measure of removal from the care of the biological parents; there must exist other circumstances pointing to the ‘necessity’ for such an interference with the parents’ right under Art 8 to enjoy a family life with their child…before public authorities have recourse to emergency measures in such delicate issues as care orders, the imminent danger should be actually established. It is true that in obvious cases of danger no involvement of the parents is called for. However if it is still possible to hear the parents of the children and to discuss with them the necessity of the measure, there should be no room for an emergency action, in particular when, like in the present case, the danger had already existed for a long period.’

7. In X Council v B (Emergency Protection Orders) [2005] 1 FLR 341, in the course of setting out a number of guiding principles in relation to emergency protection orders, Munby J held that ‘separation is only to be contemplated if immediate separation is essential to secure the child’s safety: ‘imminent danger’ must be ‘actually established’. Other principles that can be distilled from the case include:-

a) A number of gaps in the statutory scheme made it especially important that both the local authority and the justices in the family proceedings court approached every application for an EPO with an anxious awareness of the extreme gravity of the relief being sought and scrupulous regard for the human rights of both the child and the parents. b) A delay in the appointment of a Guardian even of ‘only’ 10 days was wholly unacceptable in the context of an EPO case where removal was contemplated. In such cases a guardian must be appointed immediately upon issue of the proceedings (in theory this should be assisted by the new Public Law Outline (PLO) (see below) which aims to ensure the appointment of a Children’s Guardian within two days of a case being set down for directions);c) An EPO was a ‘draconian’ and ‘extremely harsh’ measure, requiring exceptional justification’ and ‘extraordinarily compelling reasons’. It should not be made unless the Family Proceedings Court are satisfied that it is both necessary and proportionate and that no other less radical form of order would promote the welfare of the child. d) If the real purpose of the local authority’s application was to facilitate assessment of the child then consideration should be given to whether that objective could not equally effectively , and more proportionately, be achieved by a child assessment order under s43;e) No EPO should be made for any longer then absolutely necessary to protect the child;f) The evidence to support that EPO had to be full, detailed, precise and compelling;g) Save in wholly exceptional circumstances, parents must be given adequate prior notice of the date, time and place of any application for an EPO, and of the evidence being relied upon;h) An ex parte application was normally appropriate only if a case was genuinely one of emergency or other great urgency (and even then it should normally be possible to give some kind of notice to the parents or if there were compelling reasons to believe that the child’s welfare would be compromised if the parents were alerted in advance;i) The FPC had to comply meticulously with the mandatory requirements of rr20 and 21 (5) (6) of the Family Proceedings Courts (CA 89) Rules 1991, keeping a note of the substance of the oral evidence and recording in writing not only its reasons but also its findings of fact; j) The local authority, even after it has obtained an EPO, was under an obligation to consider less drastic alternatives to emergency removal. It would be prudent for the local authority to have procedures to ensure that both the required decision-making actually took place and that it was appropriately documented - s44 imposes on the local authority a continuing duty to keep the case under review day by day to ensure the parent and child were separated for no longer than was necessary to secure the child’s safety;k) Arrangements for ‘reasonable contact’, required under s44 (13), subject only to any direction given by the FPC under s44(6), had to be driven by the needs of the family, not stunted by lack of resources.

8. In Re X: Emergency Protection Orders[2006] EWHC 510 (Fam); [2006] 2 FLR 701), McFarlane J in reviewing a case where EPOs had been granted on the basis of a misleading picture of the factual background, repeated and endorsed the summary of Munby J and added his own views as follows:

a) EPO hearings should be tape recorded or at least attended by a dedicated note taker, in addition to the clerk;b) All magistrates should have available at any EPO hearing the judgment of Munby J;c) The applicant should draw the court’s attention to that judgment;d) Case conference minutes should be produced to the court (and the author would comment that in the interests of fairness it may be necessary to include any reports to case conference prepared by other agencies such as health visitors, particularly if a view favourable to the parents is expressed by them);e) Social work evidence should come from the social worker with direct knowledge of the case;f) Lack of knowledge or need for assessment does not of itself justify the making of an EPO;g) Cases of emotional abuse will rarely, if ever, warrant an EPO, let alone an application without notice;h) Cases of sexual abuse where the allegations are inchoate and non-specific with no evidence of immediate risk will rarely warrant an EPO;i) Cases of fabricated or induced illness with no medical evidence of immediate risk of direct physical harm to the child will rarely warrant an EPO;j) Justices must give detailed findings and reasons for making an EPO and should refuse the application in a proper case, leaving the LA to make an application for an ICO (and consider immediate transfer to the county court or High Court). Justices should also give separate reasons for any decision to deal with the EPO on a without notice basis.

9. In Re L (A Child) [2007] EWHC 3404 (Fam) , Ryder J was considering a case in which it was argued by the LA & the Guardian that a child should be removed from the mother before the final hearing to protect from the undisputed risk of harm which the mother’s partner presented. Her case was that she needed support to help her separate from him and she sought a residential assessment. Ryder J granted the mother’s application. In his judgment he was critical of the apparent assumption by the LA & the GAL that all that needed to be demonstrated was that the interim threshold were made out and that removal should follow as night follows day. He commented: “That is a profound error of perception that regrettably on the facts of this case amounts also to an error of law. Nowhere is there a recognition that removal is a separate consideration from the existence of the interim threshold or the need for an interim order”. From his judgment the following principles emerge:

a) in approaching the issue of interim removal, the court must consider whether there is an imminent risk of really serious harm ie whether the risk to the child’s safety demands immediate separation (per Thorpe LJ in Re H (A Child) (Interim Care Order) [2003] 1 FCR 35);b) if there is no such imminent risk, the question of a parent’s ability to provide good enough long-term care is a matter for the court at the final hearing and should not be litigated at an interim stage, effectively prejudging the full and profound trial of the LA’s case and the parents’ response;c) professionals must take great care not to conflate the issues of the test to be applied to the issue of removal (an acute safety question necessitating the child’s removal) and the nature and extent of the risk of harm (which will only justify removal unless it is an imminent risk of really serious harm, not just a heightened perception of risk as evidence emerges if that risk can be contained by adequate arrangements).

10. Applying the principles from the cases cited above, a local authority and a court should consider:

a) Is there any justification for an order interfering with this child’s right to family life?b) If there are any concerns established which might justify some sort of order, the court should prefer a less interventionist legal regime than an EPO / ICO with a removal plan. Is there a way in which the concerns of the local authority can be met without the need for removal?c) Is there evidence of immediate risk of really serious harm or imminent danger actually established (and that cannot be contained without removal of the child)? It will not necessarily be sufficient that there is growing evidence to suggest that the risk of really serious harm exists unless it becomes an immediate risk and there is not a way of containing it which avoids removal.d) Have the parents been properly involved in the decision-making of the local authority or afforded the proper opportunity to make their case before a decision is made?e) Are there extraordinarily compelling reasons which, exceptionally, might justify the draconian and extremely harsh measure of removal under an EPO?f) Is the order being considered really aimed at ensuring assessment of the child (not in itself sufficient justification for removal)?g) What evidence can be filed in support of the application? Is it full, detailed, precise and compelling? h) What proposals are there for contact the child and either of her parents? These need to be clear and substantial;i) Has a case conference been held and the minutes made available? Has the parent been given a copy of the CPC minutes? Are there other relevant documents which the court will expect the parents to have seen?j) Has the local authority carried out a meaningful assessment of the family and can it produce evidence of its conclusions?k) Is the local authority concerned because it cannot get evidence or an agreement to an assessment? This will not by itself justify the making of an EPO if other remedies can be implemented.l) Can removal be justified before a Guardian has been appointed?

The introduction of the Public Law Outline (the PLO) puts a duty on local authorities to carry out assessments and give clear information to parents about their intentions before proceedings have been issued. The pre-proceedings checklist (PLO1) sets out the documents which should be filed on the issuing of care proceedings (although it is recognised that this is not always appropriate) and they include the initial / core assessment, any other assessments, letters before proceedings, strategy meeting minutes etc. The Revised Volume 1 of the Children Act Guidance and Regulations makes the pivotal role of the core assessment and its use in support of care proceedings plain. Paragraph 3.34 also makes plain that the local authority should always obtain and consider legal advice on whether the court is likely to be satisfied that the s 31(2) criteria are met AND that an order is in the best interests of the child and that the section 1(5) ‘no order’ test is likely to be met. As part of the PLO initiative Cafcass is expected to appoint officers to deal with the case from the outset, ie within two days of the case being set down for directions (back to the good old days when Cafcass Officers / Guardians got to appoint the solicitors?). Cafcass Officers will need to scrutinize the cases carefully to ensure that any gaps in the evidence are identified. Generally the emphasis has moved towards a greater analytical and advisory role on behalf of Cafcass. My earlier concerns about whether this would be practically possible in relation to EPOs or interim removal applications arising from genuine emergencies have been borne out in some areas where there is considerable delay in the appointment of Guardians.

Parents’ lawyers in receipt of a notice of intention to issue should immediately ask for confirmation of the local authority’s intentions as to interim removal if this is not clear, and extensive documentary disclosure, in particular of any instructions given to assessors and evidence in relation to immediate harm. Non-disclosure by the local authority of key documents and lack of clarity about the evidence relied on will not assist them to meet the exacting test for interim orders which the courts have now identified.

The relevance of the Baby P caseTaking the facts as set out in the Haringey’s Local Children Safeguarding Board Serious Case Review (SCR) in December 2006 the child was admitted to hospital with a head injury. A police investigation began and on discharge from hospital the child was placed in the temporary care of a family friend. The child became the subject of a child protection plan. Agency assessment of the mother appeared broadly positive with no concerns arising from the care of two older children. On completion of multi-agency enquiries it seems the child went back to the mother, although police inquiries were ongoing and no conclusion had been reached about this injury. In April 2007 the child sustained a further head injury, said to have been caused when he was pushed against the fireplace by another child. He was admitted to hospital for two days and then discharged to the care of his mother. In early June 2007 further bruising was found on the child, the preliminary view being taken that it was likely to be the result of abuse. Safeguarding measures of sorts were put in place and a police enquiry undertaken which was completed in July 2007 with the conclusion that no criminal charges would be preferred. The Serious Case Review says: ”Haringey’s Children & Young People’s Service obtained legal advice on 25.07.07, which indicated that on the basis of the information provided, the threshold for initiating Care Proceedings (a Care Order would have meant that the local authority would have shared parental responsibility with the child’s parents and would have had the authority to remove child A) was not met. “ The child died on 3.8.07. The SCR felt that there was unwarranted delay in seeking or obtaining legal advice and that the advice that was given was not correct and made a number of recommendations about how the legal department should organise itself including recruit experienced lawyers, make sure they have all the relevant information, review cases every 6 weeks etc, provide lawyers with a pro forma legal planning meeting and guidance.

Until further details are published, if they ever are, it is difficult to say exactly what went wrong with the legal advice here and whether any competent family lawyer would have advised differently. There is an implication from the SCR’s recommendations that the lawyer advising may not have been given full information about the history of the case and the two previous injuries and that the lawyer was not very experienced and had only recently started working for a local authority. It does also look as if there was a huge delay in asking for legal advice in the first place. Behind it all, however, seems to be a lack of clarity about the difference between a justification for interim removal and a justification for commencing proceedings (together perhaps with a confusion between the likelihood of achieving a criminal conviction and the likelihood of achieving findings in care proceedings). One cannot say that the issue of proceedings without removal would have made a difference to the outcome. I have not been able to find any hard data on the incidence of child deaths attributable to abuse once care proceedings have been issued but on an anecdotal basis it would seem to be extremely low. There is already hard data to suggest that the incidence of issuing proceedings is on the rise again and I would venture to suggest that there will be more applications for interim removal by local authorities, whether this is justified or not by the evidence, and a tendency to put the onus of decision making on the courts. One can easily see why local authorities will be tempted to take the line, if in doubt, issue. More than ever, the court is going to need to be vigilant to ensure the right balance is achieved between child protection and the promotion of family life but I would suggest there is a perfectly clear and workable framework in which to achieve this from the existing case law.